David Reap v. Automation Systems, Inc. and American National Insurance Company

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ca03-229

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

DAVID REAP

APPELLANT

v.

AUTOMATION SYSTEMS, INC. and AMERICAN NATIONAL INS. CO.

APPELLEES

CA03-229

APRIL 21, 2004

APPEAL FROM ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E907897]

AFFIRMED

Andree Layton Roaf, Judge

This is an appeal from the Workers' Compensation Commission's order affirming the Administrative Law Judge's ("ALJ") finding that appellant David Reap is entitled to additional reasonably necessary medical treatment in connection with a compensable back injury and reversing the finding that Reap is entitled to additional temporary total disability ("TTD") compensation. On appeal, Reap challenges the Commission's decision denying him additional TTD benefits. Appellee Automation Systems, Inc. and its workers' compensation insurance carrier cross-appeal from the Commission's decision finding that Reap is entitled to additional medical treatment. We affirm on both the direct appeal and cross-appeal.

Reap, who is thirty-five years old, was employed by Automation Systems, Inc., as a journeyman's electrician on June 9, 1999, when he injured his neck, shoulder, and upper back. Reap explained that he was pulling wire out of a conduit, when "it kind of got into a free slack and then it just stopped and kind of jerked me, and then it popped between my shoulder blades, up in my neck." He testified that it hurt at the time but that he continued to work. His wife, Shanda Reap, stated that he did not seek medical treatment immediately because they felt he had a pulled muscle and that he continued to work because they needed the money.

After his pain and soreness worsened to the point that he could no longer work, Reap reported the injury to his supervisor on June 28, 1999, and left work to seek medical treatment. Reap went to the emergency room at St. Joseph Hospital in Hot Springs and was referred to Dr. Allan Gocio, a neurosurgeon. Dr. Gocio prescribed pain and muscle relaxant medication, and ordered Reap not to return to work until the results of an MRI of the cervical spine were obtained. On July 6, 1999, Reap underwent the MRI, and the report revealed a posteriorly bulging disc at C6-7 with degenerative disc changes. A cervical myelogram and cervical myelogram CT were performed on August 3, 1999, and these results were normal, other than congenital dystrophy changes relative to Reap's rib cage as a result of a previous gunshot wound and surgery on his chest. In a report dated September 29, 1999, Dr. Gocio stated that he had prescribed physical therapy and also recommended that Reap undergo a pain program evaluation. Dr. Gocio asked Reap to remain off work pending the evaluation.

In November 1999, Reap experienced another pop in his neck at home while turning his head in the direction of his young child. He went to see Dr. James Arthur and underwent an MRI of his thoracic spine. The MRI revealed no significant abnormalities of the thoracic discs or vertebra. Following the December 1999 visit with Dr. Arthur, Reap did not seek further medical treatment at that time because appellees controverted his claim for workers' compensation benefits for his injury. In a January 2000 report, Dr. Gocio noted that Reap had been unable to have the chronic pain management treatment that he had recommended because Reap could not afford it, and that Reap's symptoms were worsening as a result. Reap continued to remain off work throughout this period of time.

In an opinion of March 12, 2000, the ALJ ordered that appellees pay all medical expenses related to the June 9, 1999 injury. The ALJ also found that Reap remained within his healing period and awarded him TTD benefits from June 28, 1999, until a date yet to be determined. Appellees did not appeal this decision.

On July 11, 2000, Reap underwent another MRI of his cervical spine, which was compared with the previous MRI from July 6, 1999. The report again reflected mild posterior bulging of the C6-7 disc, with no spinal stenosis or nerve root impingement. Reap testified that his condition did not improve subsequent to the hearing before the ALJ and that his condition in fact continued to worsen. He moved to Kansas in July 2000, but testified that he did not drive or participate in any physical lifting or packing during the move. Appellee paid TTD benefits to Reap through July 24, 2000, when Reap returned to Little Rock for an independent evaluation by Dr. Scott Schlesinger, a neurosurgeon, upon appellees' request. Reap testified that Dr. Schlesinger's examination lasted between ten and fifteen minutes and denied that the doctor performed a hands-on examination of him during that evaluation.

Dr. Schlesinger's report from that visit related Reap's history of injuring himself in June 1999 while pulling some wire and noted that a physical examination of Reap revealed slight tenderness to the cervical spine but that motor, sensory, and reflex testing were normal. Although Dr. Schlesinger did not perform additional diagnostic testing on Reap, he stated that he did review the August 1999 cervical myelogram CT scan and that there was no evidence of disc herniation, nerve root compression, or spinal stenosis. Dr. Schlesinger stated that there was nothing that could be done for Reap from a neurosurgical standpoint and that he recommended a functional capacity evaluation, after which Reap could return to work in accordance with the results of the evaluation. Dr. Schlesinger further stated that he would recommend pain management for Reap. When questioned during his deposition about the bulging disc at C6-7 revealed during the previous MRI's, Dr. Schlesinger stated that he did not review those results, but that those findings would not be consistent with his review of the myelogram and CT films. He explained that a radiologist will frequently declare a bulging disc on a patient that he may examine and feel that it is normal for their age. In a letter of August 25, 2000, Dr. Schlesinger stated that he believed that Reap had reached maximum medical improvement.

On August 22, 2000, Reap returned to Little Rock and underwent a functional capacity evaluation. Reap stated that he was under the impression that he was returning for the purpose of administering epidural steroid injections for his injury. Because he was unable to drive, Reap's father-in-law drove him to Little Rock, and Reap stated that he did not complete the evaluation because he had other necessary business to attend to. The report, although incomplete, indicated that Reap was presently able to lift in the light category of work and that he demonstrated tolerance for sitting on a frequent basis and standing and walking on an occasional basis. Appellees controverted additional benefits after July 24, 2000.

On September 12, 2000, Reap sought emergency medical treatment in Kansas, after he awoke that morning with bilateral numbness in his hands and pain across his left shoulder blade and left side of his neck. He reported that he had been shot in the left upper chest in 1993 and that he was injured on the job in 1999. Another MRI of the cervical spine was performed on September 13, 2000, which revealed "mild central disc protrusion at C6-C7" and "questionable mild foraminal stenosis on the right at the C6-C7 level." An orthorpaedic surgeon, Dr. Neal Lintecum, reported on September 26, 2000, that Reap had related a history of injuring his neck while pulling wire out of a conduit in June 1999. Dr. Lintecum noted that films of the cervical spine showed no marked degenerative changes, although the MRI showed a C6-7 central disc herniation with no apparent significant compromise.

Reap was referred to Dr. William Bailey, who reported on October 5, 2000, that the most recent MRI showed degenerative disc disease with some central protrusion at C6-7. Dr. Bailey stated that this could very well be the cause of Reap's symptoms, but that it did not look like it is "discrete herniation." His impression was cervical disc syndrome with radicular symptoms. Dr. Bailey recommended a cervical epidural block and wrote that if Reap's symptoms continued, he might need to have "an anterior cervical disc excision and interbody fusion." Reap underwent the epidural steroid blocks, but reported no long-term relief from his symptoms. Dr. Bailey wrote on November 20, 2000, that he believed Reap's symptoms were caused by his accident in June 1999, and noted that Reap had already been through "most of the treatment with a long course of physical therapy" prior to when he saw him. Dr. Bailey stated that he had last seen Reap earlier that month and that he had recommended at that time that Reap undergo an EMG study to help differentiate the source of his arm pain. Dr. Bailey further noted that, as he recalled, he had not kept Reap off of work.

Reap claimed entitlement to additional workers' compensation benefits, contending that additional medical treatment was necessary for his compensable injury, and that he remained within his healing period and was entitled to additional TTD benefits from July 24, 2000, until a date yet to be determined. Appellees contended that Reap had reached the end of his healing period on July 24, 2000, and that his subsequent medical treatment was not causally related to his June 9, 1999 compensable injury. The ALJ's March 28, 2002 decision found that Reap was temporarily and totally disabled for the periods beginning June 29, 1999, through July 24, 2000, and continuing through the end of his healing period, a date yet to be determined. The ALJ also awarded Reap additional reasonably necessary medical treatment in connection with his compensable injury. In an opinion on November 15, 2002, the Commission affirmed the ALJ's finding that Reap was entitled to additional medical treatment, but reversed the award of additional TTD benefits, finding that Reap failed to prove that he remained within his healing period and was totally incapacitated to earn wages beyond July 24, 2000. Reap appeals from this decision, and appellees cross-appeal. Reap argues on appeal that the Commission's decision terminating his temporary total disability benefits is not supported by clear and convincing evidence as required by Arkansas law, and he also contends that the Commission erred by relying on Dr. Schlesinger's testimony stating that he had reached maximum medical improvement as of July 24, 2000, and that he therefore was not entitled to additional temporary total disability benefits. Although Reap frames his argument as two different points on appeal, both points challenge the sufficiency of the evidence supporting the Commission's decision; thus, we address them together.

When reviewing a decision of the Workers' Compensation Commission, this court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission. K II Constr. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002). Contrary to Reap's assertion that the Commission's decision must be supported by clear and convincing evidence, it is well-settled that this court must affirm the decision of the Commission if it is supported by substantial evidence. Id. Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion of the Commission. Id. The issue on appeal is not whether the appellate court might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, the appellate court must affirm its decision. Id. In addition, the Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 48 S.W.3d 544 (2001). The Commission's resolution of the medical evidence has the force and effect of a jury verdict. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002).

Reap contends that the Commission erred in reversing the ALJ's award of additional TTD benefits. He asserts that the evidence showed that he remained within his healing period and was totally incapacitated to earn wages after July 24, 2000, as he never received the medical treatment that he needed for his injury and his condition had not improved subsequent to the ALJ's March 2000 decision.

Temporary total disability is that period within the healing period in which a claimant suffers a total incapacity to earn wages. Poulan Weed Eater, supra. When an injured employee is totally incapacitated from earning wages and remains within his healing period, he is then entitled to TTD. K II Constr., supra. The healing period is that period for healing of an injury that continues until the claimant is as far restored as the permanent character of the injury will permit. Poulan Weed Eater, supra. The healing period ends when the underlying condition causing the disability has become stable and nothing in the way of treatment will improve that condition. Id. The determination ofwhen the healing period has ended is a factual determination for the Commission that will be affirmed if supported by substantial evidence. Id.

In denying Reap additional TTD benefits after July 24, 2000, the Commission found that the preponderance of the evidence indicated that he had reached the end of his healing period no later than July 24, 2000. In making this determination, the Commission relied upon Dr. Schlesinger's July 24, 2000 report based upon his physical examination of Reap, in which Dr. Schlesinger found only slight tenderness in Reap's cervical spine and reported that motor, sensory, and reflex testing were all normal. In addition, Dr. Schlesinger found no evidence of spinal stenosis or nerve root impingement from his review of prior diagnostic testing of Reap, and he stated that there was nothing that could be done from a neurological standpoint. Dr. Schlesinger stated that Reap could return to work after completing a functional capacity evaluation and testified that he had reached maximum medical improvement as of July 24, 2000. The Commission thus found that Reap was as far restored as the permanent character of his injury would permit as of July 24, 2000. The Commission also found that Reap failed to prove that he was totally incapacitated to earn wages beyond July 24, 2000. The Commission noted the results of Reap's functional capacity evaluation on August 22, 2000, which showed that he could perform in the light category of work, as well as Dr. Bailey's letter stating that he could not recall keeping Reap off of work.

Reap argues that the Commission erred in relying on Dr. Schlesinger's testimony that he had reached maximum medical improvement because the doctor was selected and paid for by appellees, and because he only examined Reap for ten to fifteen minutes and did not perform any additional diagnostic tests. However, the Commission specifically addressed the adequacy of Dr. Schlesinger's examination and found that he performed a comprehensive examination and was competent to render an accurate diagnosis. It is the province of the Commission to weigh the evidence and to accept or reject medical opinions, and this resolution has the force and effect a jury verdict. Poulan Weed Eater, supra.

Reap also contends that the evidence showed that his condition was the same or worse, that he needed additional medical treatment, and that he remained unable to work. Although Reap testified that his symptoms remained the same or had worsened, the preponderance of the medical evidence showed that there was nothing further that could be done to improve his underlying condition causing the disability. He had already been treated with physical therapy, pain medication, muscle relaxants, and steroid injections, all of which failed to improve his condition. Dr. Bailey did write that he had recommended an EMG study to help determine the cause of Reap's arm pain, and stated at one point that Reap may need surgery; however, there was no evidence that either of these procedures was reasonably necessary to improve Reap's underlying condition, and none of the other doctors have recommended surgery or other medical treatment besides pain management. The persistence of pain does not of itself prevent a finding that the healing period has ended, provided that the underlying condition has stabilized. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). Thus, the Commission's decision that Reap had reached the end of his healing period by July 24, 2000, is supported by substantial evidence.

Moreover, even if the Commission had found that he had not reached the end of his healing period, its decision to deny Reap additional TTD benefits is not in error as the Commission also found that he was not totally incapacitated to earn wages after July 24, 2000. Given the results of the functional capacity evaluation and Dr. Bailey's statement that he had not kept Reap off work, there is substantial evidence to support this finding. Thus, the Commission's decision denying Reap additional TTD benefits is supported by substantial evidence, and we affirm on direct appeal.

Appellees cross-appeal, arguing that there is not substantial evidence to support the decision of the Commission that the appellant is entitled to additional medical treatment. Arkansas Code Annotated section 11-9-508(a) (Repl. 2002) requires employers to provide such medical services as are reasonably necessary in connection with the injury received by the employee. What constitutes reasonable and necessary treatment under section 11-9-508(a) is a fact question for the Commission. K II Constr., supra.

Appellees argue, as they did to the Commission, that Reap's condition was resolved by July24, 2000, and that any medical treatment thereafter is a result of some independent, intervening cause and not causally related to the June 9, 1999 compensable injury. Appellees base their argument on the fact that the September 2000 MRI showed a disc herniation, while the previous MRI's showed at most a bulging disc at C6-7. Therefore, appellees contend that there must have been some subsequent injury by Reap and that this subsequent injury is the likely cause of his need for treatment after July 24, 2000.

However, as the Commission found, there is no evidence to suggest such a subsequent injury. Reap denied any additional injury after November 1999, when his neck popped for the second time and which was found to be causally related to his June 9, 1999 injury. Also, all of the MRI's both before and after July 24, 2000, are consistent in that they indicate some bulging at C6-7, and Reap has continued to suffer from the same type of symptoms throughout, although he stated that some of his symptoms have worsened. Both Dr. Schlesinger and Dr. Bailey recommended further pain management treatment after July 24, and Dr. Bailey stated that he recommended an EMG study and that surgery may be necessary in the future. When the claimant's primary injury is shown to have arisen out of and in the course of employment, the employer is responsible for any natural consequence that flows from that injury, as long as there is a causal connection between the injury and the consequences of such. Id. There was no evidence of any independent, intervening cause of Reap's need for treatment after July 24, 2000, and the Commission's decision awarding him benefits for additional reasonably necessary medical treatment is supported by substantial evidence.

Affirmed on direct appeal; affirmed on cross-appeal.

Gladwin and Bird, JJ., agree.